Golden Oldie #3 – Retaliatory Delay is Not Permitted: Two Wrongs Don’t Make a Right
Golden Oldie #2 – 40 Hours of Searching is Enough
April 17, 2025Golden Oldie #4 – What Does it Mean to Limit Discovery to the “Claims and Defenses” Instead of the “Subject Matter” Involved in the Action?
April 19, 2025In Jayne H. Lee, Inc. v. Flagstaff Industries Corp., 173 F.R.D. 651 (D. Md. 1997), plaintiff’s counsel “was dissatisfied with the response by the defendant to the interrogatories and requests for production of documents which the plaintiff had filed….”
What happened next was a mistake. Plaintiff, “without ever seeking to file a motion to compel following a conference with counsel for the defendant, unilaterally decided to hold the plaintiff’s discovery responses hostage until he obtained discovery responses which met his satisfaction.”
The Court called this retaliatory delay “a flagrant violation of both the letter and spirit of the Federal Rules of Procedure, Local Rules, and Discovery Guidelines [of the District of Maryland].”
Plaintiff did not argue that the defendant’s discovery was objectionable:
Instead, counsel continues to argue that two wrongs make a right, and that his client should not be compelled to produce the requested discovery because the defendant has not adequately responded to plaintiff’s discovery requests.
The Court stated:
Seldom have I heard a less persuasive argument…. Plaintiff’s counsel may not convert pretrial discovery into a game of brinkmanship, and I certainly will not bless this practice by entering the type of order plaintiff’s counsel now advocates. It is clear under the text and spirit of the discovery rules that the existence of a discovery dispute as to one matter is not a ground to delay or withhold the taking of other discovery. [Emphasis added].
The Court said that plaintiff had a rule-based remedy – – a motion to compel under Fed.R.Civ.P. 37. However: “He may not retaliate and hold his client’s interrogatory answers and responsive documents hostage.”
The Jayne H. Lee decision also importantly noted that: “[A] response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, is not a complete answer as required by Rule 34(b) and, therefore, pursuant to Rule 37(a)(3) is treated as a failure to answer or respond.” That was reiterated in Int’l Painters & Allied Trades Indus. Pension Fund v. Niles Indus. Coatings, LLC, 2023 WL 6812297, at *4 (D. Md. Oct. 16, 2023).
History is important.
